Judge Posner: Do Most Industries Even Need Patents?

from the good-to-see dept

We’ve already covered esteemed Judge Richard Posner’s vehement dismissal of Apple’s patent infringement case against Motorola. While we, and many others, had noted Posner’s caustic remarks concerning the abuse of the patent system, patent system defenders tried to play his arguments down as merely being concerned with the damages calculations (the technical point on which he dismissed the case). However, Posner recently seems to be taking an even stronger stance. First, even after he dismissed the case, he released an order spanking Apple, though even he notes in the order “The case having been dismissed, I am not at all sure that I have jurisdiction to issue this order! Anyway it really isn’t an order, but merely a comment on an email.”

But, more importantly, he gave an interview with Reuters, where he was much more explicit about his concerns with the overall patent system and how it seems to hold back progress and innovation.

Posner said some industries, like pharmaceuticals, had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug.

Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets – a benefit they would still get if there were no software patents.

“It’s not clear that we really need patents in most industries,” he said.

Also, devices like smartphones have thousands of component features, and they all receive legal protection.

“You just have this proliferation of patents,” Posner said. “It’s a problem.”

This isn’t a huge surprise. If you’ve read Posner’s book The Economic Structure of Intellectual Property Law written with William Landes, you’d know that he’s long recognized that there are competing forces in the patent system, which could lead it to doing more harm than good. However, it’s always appeared as if he came down (just slightly) on the side of thinking they more or less worked. It appears he’s now pretty clearly shifted over to recognizing the widespread harm patents do.

The Reuters report also notes that he specifically let it be known to district courts that he was interested in hearing a patent case. Despite serving on the 7th Circuit appeals court, Posner never gets to hear patent cases, because of our ridiculous system where all patent appeals go to the federal circuit. That’s too bad, because it would have been nice to have allowed him to make this ruling at the appellate level and get a real circuit split going to force the Supreme Court to be more aggressive in fixing the problems in the patent system. Either way, it’s good to see him speaking out on this and admitting that many industries probably don’t need patent protection (hell, if he really wants to explore the drug industry, he may discover that it doesn’t need patents either, but that’s a whole different post…).

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Companies: apple, motorola

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Comments on “Judge Posner: Do Most Industries Even Need Patents?”

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Re: Posner for President

If only there was a way to actually get this movement started. We have the a man that is clearly intelligent and understands the technological world in a way no other person in the government system obviously does. Now we just need to fund him. Someone needs to email him and get a kick starter group going “Posner for President!”


Patent Abolition

Only the patent bar needs patents. All other industries suffer economic losses at the hands of the patent bar. The patent system is a conspiracy against the rest of us by the patent bar. The benefits of the patent system, to anybody other than the patent bar, are illusory. Meanwhile, the costs, both direct and indirect (by damage to other industries) are vast ($80B and up) and getting larger.

If something has a cost greater than its benefit, then it helps the economy as a whole to stop doing it. The present crop of politicians seem to be having a huge amount of trouble with the whole idea of costs versus benefits. Also, they do not understand the wisdom of stopping non-beneficial activities. Total boondoggles just go on and on. Come on, you American voters, do your duty. You need a fresh bunch of more economically literate politicians in Congress.

Mason Wheelersays:

Re: Patent Abolition

The patent system isn’t a “conspiracy”; it’s the solution to an even worse problem: the trade secret.

Quick, when was steel invented? Most people would guess sometime in the middle ages, mostly due to the iconic cultural image of the knight with a steel sword and armor. But the earliest known samples actually date back to approximately 1400 BC!

But when was modern steelmaking invented? The late 18th century AD. Everything we know about making steel today dates back to the work of two British inventors who lived in that time period, and later improvements on their techniques.

So what happened in the intervening 3000 years? Smiths kept discovering steel, and they would keep the technique secret. The metal had important military applications, and whoever held the secret could become very wealthy with the local king as their patron. And then, when the smith died, if he had not passed the secret on to an apprentice, it died out until someone else discovered it anew.

So the real question is, what changed in the 18th century to keep that from happening? And the answer is, the British patent system. It allowed the inventors to protect the exclusive rights to their invention under two important conditions:

1) They must describe the process in detail and publish it, so that the knowledge would not be lost.
2) They must turn the knowledge over to the public domain after a certain number of years.

And it was a phenomenal success. Public-domain steelmaking fueled the Industrial Revolution, and it was less than a decade after steelmaking entered the public domain that Karl Benz introduced the first automobile. The only thing that’s had a comparable effect on modern society is the invention of alternating current, and we owe it all to patents for making it economically unfeasible to keep it a secret.

So no, patent abolition is not a good idea. What we need is reform, to return the patent process to its roots of “promoting the progress of science and the useful arts,” instead of being abused as it is today to retard innovation.

Chosen Rejectsays:

Re: Re: Patent Abolition

Utter hogwash. If you have an invention that you think can not be reverse engineered or figured out by others, you don’t patent it, because then there is not expiration date to your protection. You only patent stuff that you know others will be able to figure out (either on their own or by looking at your invention).

Patents do not encourage the publishing of trade secrets.

Patents are a tax on progress.

Zakida Paulsays:

I think patents are needed but not in the way we have all become accustomed to. Businesses should be able to protect their products but other businesses need to be able to create competing products without fear of being sued out of existence. I’m no expert but there has to be a balance that can be struck here.



It depends on what you mean by “protect their products”.

Copyright would protect software products from copying. Trademark and Trade Dress would protect products from knock offs marketed to deceive people into thinking they are buying your product.

If that’s what you mean, then I agree.

If you mean that they need to protect their products from having to compete in a fair market, then I disagree and would consider a company like that to be part of the problem not part of the solution.

Zakida Paulsays:

Re: Re:

“Copyright would protect software products from copying. Trademark and Trade Dress would protect products from knock offs marketed to deceive people into thinking they are buying your product.

If that’s what you mean, then I agree.”

Yes, sorry, I should have been clearer. That’s exactly what I meant.



There should be some protection (counterfeit laws?) to protect a company that spends significant time in R&D then produces a product from direct copying or copying with minor modifications. This was the initial vision of the patent system. I agree that it is hugely abused and patents are not issued in a specific enough manner.


Re: Re:

Do you believe that a company that spends money on R&D is actually building something the world has never seen or most likely building on some other established idea/product?

Also, why does anyone get a guarantee that they will earn their money back? My college certainly didn’t offer a money back guarantee on my diploma.


Re: Re: Re:

Don’t misunderstand. I’m not saying a transformative, improved work should be prohibited. It should not. A DIRECT COPY with or without Minor Modifications just isn’t fair.

The PURPOSE (which has been PERVERTED) of the system was to protect my company which researched, created, produced and most importantly SOLD a gadget from being copied directly by someone who is just a copycat and did no innovation. The purpose is to SPUR innovation not stifle it.

The present system allows someone to “patent” and IDEA – an abstraction that isn’t used as a product at all and isn’t even produced and then profit from said IDEA by using the legal system. That STIFLES innovation. I’m not for that at all.

IF a company happend to patent something and then produced a product and for whatever reason discontinued production — that patent should be up for grabs for at least a license that cannot be denied by the patent holder so that it can continue to be produced.

I think the solution to the problem is to disallow software and business model patents and only allow them on produced physical goods.


Re: Re:

The only justification for issuing a patent is that someone describes to the government a non-obivous discovery transformed into a functional invention, so precisely that anyone can automatically replicate their invention based on that description.

The patent must be time limited (shorter is better than longer) and should not apply to anything anyone can figure out by simply giving the item a glance over.

The purpose of a patent is to convince someone to describe their invention so that others can build on it. The limited monopoly is the inducement to do so. The fact is if someone can figure out how to make your product with a glance over, or steal your “idea” with a glance over, it should not get patent protection since no one needs you to describe that idea to be able to build on it.

Likewise if others can easily come up with your invention as a solution, given the suggestion of the problem, then it does not merit patenting.

Trade marks and trade dress are not about the producer but about the consumer. The consumer has a right to not be mislead.


Re: Re: Re:

Both patents and copyright had limited duration and application and it can be argued that both were (note the past tense) as first legislated.

Now we have near eternal copyright and patents granted to items that are
(a) obvious — say the one click
(b) based on prior art — name me any of 9/10ths of the software patents out there
(c) not reproducible due to the nature in which they are written. Put another way they’re trying to patent the rising and setting of the sun if you believe patent trolls.
(d) there is no product (code) backing the claims the patent makes.
(e) like copyright patents are drifting towards a life span close to or near eternity.

A return to the original intention of both with limited monopoly in time (14 years non renewable is sufficient) and scope.

Patent examiners need to be paid salaries not bonuses/incentives to approve patents. The also need to be subject matter experts in the kind of patents they examine or have the right and duty to consult with the same before issuing or denying a patent.

As it is both concepts are being corrupted far beyond their original, laudable, intent to the point where, as people have noted they become an economic disincentive. And, at times, a social disaster.


The UK doesn’t recognise software patents. I am actually unsure why any other system does either. And in spite of this the UK has a huge game industry writing some of the most memorable games of the past 20 years.

Software is not a physical invention. You cannot just copy it to clone it, you have to rewrite it yourself unless of course you get a copy of the source but that is industrial espionage and a completely other legal playing field with criminal implications.


Re: Re:

She does sound like a bit of a nutter though, much to my shock, she’s ruling on a design, patented no less, so she may have grounds in law to hold up her own ruling.

The case has moved to appeal where it belongs.

I don’t know why I’m surprised by the patent on the design. After all this is the United States I’m looking at…the same country that decided software was patentable and people are now trying to patent genomes they acquired by taking blood and skin tests from aboriginal groups in Central and South America. And here I was, under the impression that you still couldn’t patent things which occurred naturally.

So, not only can I patent a minor change to the design of my house or garden, if I was living in the States I could probably patent myself in whole in case some biotech firm decided that there was something interesting running around in me that they might like to patent. I want in on that action! So I’ll happily license myself to them for an unreasonable fee. ­čÖé




Re: It's not activist judges it's how the system works.

I suppose you could try judge shopping and see what happens. Still, to paraphrase Judge Posner a bit, you can’t appeal a judgement you simply don’t like appeals have to be on points of law not the outcome.

Appeal of many cases is automatic or nearly so. For example capital punishment convictions and sentences are automatically appealed.

Civil law cases may be appealed if the decision is precedent setting. That’s not activist judges that’s just how the system has worked for a thousand years or so. In fact that’s how the vast majority of what we call civil law came to be, precedent setting rulings. Even where some of it is codified those codes came from the laws that came about from rulings and established long standing precedent.

But you can’t just appeal because you don’t like the outcome, it has to be on points of law where the judge or judge and jury erred in law coming to their rulings whether the case is a civil or criminal one.


Re: Re:

My point, Mike, in my long winded way. And he’s far from a nutball or even much of an “activist” come to that.

The fact that he’s neither is why his ruling and subsequent interview are getting so much attention.

BTW, he was appointed by Ronald Reagan no big fan of “activist” judges or nutballs.


If They Could Get Back to Their Purpose

According to my recollection, the ORIGINAL purpose of patents was two fold. First, in an era where it could takes YEARS to get a product to a sizable market and make a a return on the investment, it was supposed to protect the inventor from others cashing in on the hard work it took to develope the product. The second purpose was to make a public record of the invention so that the knowledge was not lost.

Recent software patents are so broad and do not include any working sample (or even a conceived working sample) of what is supposed to be accomplished, that they are useless. With over 30 years in the software business, reading a current “software patent” is just a broad claim over an idea. In many cases, even the idea if vague except for the concept of a “system and method to -do something- over the Internet”. Of course, mentioning “over the Internet” is the most important part. Since a reasonably intelligent person practiced in the art could not produce a workable product from the descriptions, the patent is useless as a store of knowledge. Since the “state of the art” in software has a lifecycle of 18 to 24 months, it is rediculus to lock up anything software related for 17 to 20 years. By the time the patent gets approved, in many cases, the softare has become shelfware.

Look at the “patent thicket” around mobile phones. Most of the patents seem so “obvious” to the practitioners of the art that they all come up with the same thing. That is not the purpose of patent protection (someone should be charged with RTFM about the non-obvious clause).

So, maybe not get rid of patents, but revisit their purpose. The Internet seems to be the store of knowledge and product cycles are measured in months not years. Its time to rethink the process.


Re: If They Could Get Back to Their Purpose


Just get rid of patents.

A long time ago they served a purpose. In the 21st century they don’t appear to serve any useful purpose.

At least get rid of software patents. Shorten the life of most other patents.

As you point out, a long time ago it took time to build a market. Communication, travel and transportation were slow and scarce. In the 21st century this is no longer true.


Re: If They Could Get Back to Their Purpose

No, the purpose was more in line with your second suggestion (to promote the arts and sciences), and the first suggestion was simply a means to an end.

So there was never a conceptualization that anyone ought to be protected while bringing their product to market, but rather this protection was seen as the inducement that would convince people to participate in the patent system. It’s a reciprocal exchange: you describe it and we’ll protect it for X years.


Re: Re: If They Could Get Back to Their Purpose

Then it is a failure today, since the disclosure of inventions today are so vague to the point that even people educated on the art have a hard time figuring out what it was said in there.

Now that incentive seems less and less necessary when to produce anything today you need to rely on a range of knowledge that is not easy to acquire requiring people to create their own repositories of knowledge, share and experiment in the open.


Despite serving on the 7th Circuit appeals court, Posner never gets to hear patent cases, because of our ridiculous system where all patent appeals go to the federal circuit. That’s too bad, because it would have been nice to have allowed him to make this ruling at the appellate level and get a real circuit split going to force the Supreme Court to be more aggressive in fixing the problems in the patent system.

Mike, you appear to be fundamentally confused about which branch of government creates patent policy. A circuit split on what point exactly? How do you think the judiciary is going to “fix” patent law when it’s obviously not their job to create the law? Seems like you’re doing what you often do: Bypassing the legislature and hoping that the courts will do it instead. I’m surprised you’re not whining about patent laws being unconstitutional (I’m sure you believe this, even though it doesn’t pass the laugh test).

E. Zachary Knightsays:


The courts hold an important role in the US’s system of checks and balances. They are the branch of government that determines if laws passed by Congress and signed by the President are fair and fit within the scope of the Constitution (at least they are supposed to). If the courts find that a law is unfair or unconstitutional, the law is no longer in effect and Congress must reconsider it.

So Mike asking for more judicial review of patent law is perfectly inline with the system of government instituted in the US.

If you still don’t understand, go take 3rd grade Civics class again.


Re: Re:

Of course they don’t write common law. How dare they! Who said that was their job! String ’em up!
Oh, Alfred the Great. Perhaps stay away from the lynch party cause I like my head on my shoulders where it belongs!

The British Museum and the Old Bailey in London share 6 stories of rulings from Alfred’s time to the present day. I suspect the Smithsonian in the United States has a similar resource focusing, of course, on the United States as would the United States Supreme Court.

Still, for believers in activist judges and prehistoric aliens teaching Egyptians how to make pyramids your explanation of an invisible law field works a lot better. Just think of the wonderful TV series and movies that can be made!



What Mike is saying is that the circuit court, to date, has ruled one way in these cases. A ruling, particularly a well written well grounded that disagrees with previous rulings makes it well nigh impossible for appellate courts to refuse to hear them.

He’s not asking that the court, in this case, set policy. It’s the enforcement of that policy that is in question and that is not the prevue exclusively reserved for the legislature. That and he’s asking for clarification of law and enforcement from a higher court which, if anything, is the exclusive prevue of the courts unless and until a legislature decides to act.

It’s hard to argue against the constitutionality of patents when they’re written into the US Constitution though the details are not.

You’re not getting to the laugh test much less qualified to be laughed at yet.

Mike Masnicksays:


Mike, you appear to be fundamentally confused about which branch of government creates patent policy. A circuit split on what point exactly? How do you think the judiciary is going to “fix” patent law when it’s obviously not their job to create the law? Seems like you’re doing what you often do: Bypassing the legislature and hoping that the courts will do it instead. I’m surprised you’re not whining about patent laws being unconstitutional (I’m sure you believe this, even though it doesn’t pass the laugh test).

You appear completely unable to comprehend complex subjects. It’s stunning.

I am not saying that the courts should set policy, but they very much do act as the control valve when policy go way beyond reasonable. And you make it out like I’m crazy for suggesting this, and yet some of the most respected legal practitioners around seem to agree on the importance of having the courts push back on the excesses of patent law.


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